Applying for a divorce is the easy part of a separation ... that is, depending on whether you file a Joint Application or Sole Application. Really, whether you go through it together with your future former spouse or all by yourself dictates how hard or easy your divorce is going to be. If you're wondering about the difference between joint and sole application for divorce in Australia, here is how they both work.
Joint application for divorce
In family law, a joint divorce application is completed by both you and your spouse before an authorised witness. It simply requires you to wait a minimum period of 12 months from your separation and complete an online application at the Family Court website, which you return/file with a copy of your marriage certificate and filing fee. (If you are experiencing financial hardships, you can avail yourself of reduced fees.)
If you file a joint divorce, you or your partner will not need to attend divorce proceedings.
So long as all necessary information is provided, the divorce will be granted around two months from the filing date. You will receive notification by mail. You can also check online if your divorce order is already in the Commonwealth Courts Portal.
If a joint application is possible, it is preferable in terms of ease.
Sole application for divorce
Your other option is to file a Sole Application for divorce. Here, one spouse files for divorce, but this is more complicated. You may need to file an application for divorce without your husband because:
- Your spouse does not want to get divorced
- You are unable to work with your partner on a joint divorce application
- You are unable to locate your ex
You can complete Sole Application forms online at the Family Court website. However, you are required to serve the application to your spouse so he is notified of the upcoming divorce hearing. Here are your questions answered.
How do I serve documents for a sole divorce application?
When you complete your Sole Application for divorce online, you will be provided with documents that your spouse is required to receive, read and sign. This is done by ‘service of documents’.
Documents must be:
- Served at least 28 days before the hearing date (if your former spouse is in Australia)
- Served at least 28 days before the hearing date (if your partner is overseas)
- Delivered by hand or by post
- If delivered by hand, it must be someone other than yourself, possibly a friend, relative or Process Server.
It is absolutely necessary to serve these documents, as they require your spouse's signature. If you're considering service by post, you must be 100% sure that your husband will sign it.
But I don't know where my husband lives to serve him divorce papers
Obviously, if you don’t know his whereabouts, you will be unable to serve documents to him. In this case, you must first prove you have tried to locate your spouse using the below methods, all of which must be recorded in an Affidavit:
- Try his last known address
- Ask his family and friends
- Ask at his place of employment
- Place notices in newspapers
- Anything else to prove you have tried to find him
You are then able to apply for either:
- A substituted service, i.e. serve the documents to another person who can pass them to your husband
- An order to dispense with service
It may be necessary to request permission from the court to post a photo of your spouse in public places or notices in the local newspaper.
For more information about how the service of documents works, or if you are having problems, watch this video:
What happens when he receives the application?
When your spouse receives the Application:
- Your ex-husband will be required to sign the Acknowledgement of Service form to confirm he has received it
- Then you must sign an Affidavit of Proof of Signature to verify his signature
- Finally, the person who served the documents must sign an Affidavit of Service with service details, i.e. time, date and location.
Once you have obtained all these documents, you must be able to file them to the Court before the hearing date.
What if my husband refuses to sign?
If your stubborn spouse refuses to sign the acknowledgment of the application, you will have to use a Process Server (provided with a photo of your partner) to deliver the documents. The Process Server will then sign the Affidavit to say your spouse has received the documents.
Do we need to attend a court hearing for a sole divorce application?
The applicant will be required to attend court for the hearing for your Sole Divorce application if you and your husband have a child 18 years and under. You might have to provide evidence, especially if one party is fighting for child custody.
Your ex-partner will only be required to attend the court hearing if he opposes the divorce, even if you have children under 18.
What if I am unable to make it to court?
If you cannot get to court to attend the hearing in person, you can ask to appear by telephone using the Telephone/Video link attendance request form. For more detailed information on the Australian divorce process, seek legal assistance from your solicitor or lawyer.
Conclusion to the divorce application process
In conclusion, whether you opt for a joint or sole application for divorce in Australia depends on your personal circumstances and the relationship with your ex-spouse. A joint application is the simpler, more straightforward option, as it avoids the need for court appearances and ensures both parties are on the same page. On the other hand, a sole application is necessary if your spouse is unwilling to cooperate or cannot be located. Still, it involves more steps, including the service of documents and possibly attending a court hearing. Regardless of your chosen path, understanding the differences between these applications ensures that you are better prepared for the process. For further guidance, consider seeking legal advice to ensure everything proceeds smoothly.
